Kenneth W. Tupper & Beatriz Caiuby Labate, Plants, Psychoactive Substances and the International Narcotics Control Board: The Control of Nature and the Nature of Control, Human Rights and Drugs, Vol.2, No.I, 2012

ABSTRACT

This article reviews and critiques the International Narcotic Control Board’s (INCB) 2010 Annual Report’s recommendation about plant materials containing psychoactive substances. It first provides an overview of the United Nations drug control system, then contextualises the INCB’s role in the UN system. Through a reading of the text of the INCB’s 2010 Report and references to contemporary practices of ayahuasca drinking based in fieldwork, the article shows how this Report fits into the international paradigm of the war on drugs and its conflicts with human rights. It is argued that the Board’s recommendation demonstrates an unwarranted attempt to extend the scope of its powers, conflates and thus misrepresents widely diverse plant materials and their effects, fails to distinguish between ‘use’ and ‘abuse’ of psychoactive substances and appears to assume that particular elements of culture—specifically, traditions involving psychoactive substance use—are, or should be, static, eternally frozen in time and place.

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Briefing on Bolivia’s concurrent drug control and other international legal commitments

Damon Barrett
International Centre on Human Rights and Drug Policy
July 1, 2011

Bolivia’s denunciation of the 1961 Single Convention on Narcotic Drugs is not just about one treaty. It is about finding an appropriate balance between multiple concurrent and conflicting international legal obligations. When international treaties ratified by or acceded to by Bolivia and relevant jurisprudence are taken into account, it is clear that Bolivia would find itself in breach of multiple international agreements were it to fully implement the 1961 Single Convention as written. A reservation on the 1961 Single Convention is the most reasonable and proportionate way to address this conflict.

Download the backgrounder (PDF)

This is particularly so in relation to indigenous peoples and free prior and informed consent relating to issues that affect them. The manner in which Bolivia translates international obligations under the 1961 Single Convention on Narcotic Drugs into national legislation, programmes and policies must be consistent with its obligations to respect indigenous peoples rights that flow from its obligations under contemporary international, constitutional and (indigenous) customary law. The proposed reservation provides the means through which these obligations can be harmonised. Without it the Convention would constitute a unilateral imposition of a ban on the coca leaf on indigenous peoples, and a failure to fulfill the obligations to hold good faith consultations in order to obtain their consent and to ensure their cultural and physical survival.

A second question relates to whether the reservation is compatible with other concurrent international legal obligations, in this case under the law of treaties and children’s rights. An analysis of these agreements set against Bolivia’s proposal reveals no apparent conflict.

This backgrounder is divided into two sections.

I. Considers drawing a balance between the Single Convention of 1961 and
• Universal Declaration of Human Rights 1948
• International Covenant on Civil and Political Rights 1966
• International Covenant on Economic Social and Cultural Rights 1966
• International Convention on the Elimination of Racial Discrimination 1965
• UN Declaration on the Rights of Indigenous People 2007
• ILO Convention 169 – Indigenous and Tribal Peoples Convention 1989
• UNESCO Convention for the Safeguarding of Intangible Cultural Heritage 2003
• UN Convention on the Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988
• Convention on Biological Diversity 1992

II. Considers the compatibility of the proposed reservation with
• Vienna Convention on the Law of Treaties 1969
• Convention on the Rights of the Child 1989
• ILO Convention 182 on the Worst Forms of Child Labour 1999

Bolivia Withdraws from the UN Single Convention on Narcotic Drugs

TNI/WOLA Press release
Thursday, June 30, 2011

The Bolivian government formally notified the UN Secretary General of its withdrawal from the 1961 Single Convention on Narcotic Drugs (as amended by the 1972 Protocol) yesterday. The withdrawal will enter into effect on 1 January 2012. At that time, Bolivia will re-accede to the Convention with a reservation on the coca leaf and its traditional uses.

Bolivia’s step – the first of its kind in the history of the UN drug control treaties – comes after the rejection earlier this year of its proposal to delete the Single Convention’s obligation that “coca leaf chewing must be abolished” (article 49). A number of countries, including the United States, objected.

TNI and WOLA express their full understanding and support for the decision taken by the Morales administration, with the approval of the Bolivian legislature. After its proposed amendment was rejected, Bolivia had no other choice but to withdraw from the Convention, given the need to reconcile its international treaty obligations with the country’s new 2009 Constitution, which allows for a period of four years for the government to “denounce and, in that case, renegotiate the international treaties that may be contrary to the Constitution.”

According to the 2009 Constitution: “The State shall protect native and ancestral coca as cultural patrimony, a renewable natural resource of Bolivia’s biodiversity, and as a factor of social cohesion; in its natural state it is not a narcotic. It’s revaluing, production, commercialization and industrialization shall be regulated by law” (article 384). Martin Jelsma, director of TNI’s Drugs and Democracy program, points out: “The restrictions placed by the Single Convention on the coca leaf and its traditional uses – in the absence of any evidence of its harmfulness, were an historical error and a violation of indigenous rights.” The other procedure available under the treaty to correct this error – apart from the amendment that was already rejected – is a World Health Organization (WHO) review of the classification of the coca leaf. Bolivia considers that the outcome of such a WHO procedure would likely take too long to comply with the four-year Constitutional deadline.

We call on the international community to express understanding and support for the decision taken by the Bolivian government. Other countries with comparable legal conflicts regarding the status of the coca leaf, such as Peru, Colombia and Argentina, would be well-advised to follow Bolivia’s step and/or to initiate the long overdue WHO review.

CONTACT:
Kristel Mucino, TNI/WOLA Drug Law Reform Project Communications Coordinator
kmucino@wola.org; 617-584-1713

RESOURCES:

Backgrounder: Bolivia’s denunciation of the 1961 Single Convention on Narcotic Drugs
Backgrounder: Bolivia’s concurrent drug control and other international legal commitments
Press conference by H.E. Pablo Solon, Permanent Representative of the Plurinational State of Bolivia, on Bolivia’s decision to withdraw
Martin Jelsma, Director of TNI’s Drugs and Democracy Program, on “Lifting the Ban on Coca Chewing”
Drug Law Reform Website: Unscheduling the Coca Leaf

Bolivia likely to denounce 1961 Single Convention on Narcotic Drugs

Bolivia’s lower house has agreed to denounce the 1961 Single Convention on Narcotic Drugs due to longstanding disagreement with the ban on traditional uses of coca in the treaty.

The law, proposed by President Evo Morales, is likely to pass the upper house where his party has a significant majority. The aim is to re-accede to the Convention with a reservation on the disputed provision(s).

Under the Single Convention (articles 49 and 50) reservations are dealt with in some detail. This move in fact raises some interesting legal issues, and will create inevitable diplomatic heat. It is unclear as yet what the reservation will look like.

The Guardian newspaper is carrying the story. It will be a very interesting legal issue to follow, and one we will be watching closely.

Colombia: Drug war myopia and the human rights lens. Presentation delivered at the Irish Centre for Human Rights

Damon Barrett of the International Centre on Human Rights and Drug Policy delivered a seminar for Phd and masters students at the Irish Centre for Human Rights, focusing on human rights and drug control in Colombia.

The presentation looked at Colombia as a case study in analysing the justifications, means and ends of drug control policies through a human rights framework.

It is available for download.

‘Drugs and human rights: private palliatives, sacramental freedoms and cognitive liberty’ C. Walsh, International Journal of Human Rights, 2010

ABSTRACT

This paper reviews the impact of ten years of domestic incorporation of the European Convention on Human Rights (ECHR) on the evolution of the United Kingdom’s primary piece of prohibitive drugs legislation, the Misuse of Drugs Act 1971. The significant cases where traditional interpretation of this Act has been challenged in the courts using the Convention are discussed. Structured thematically, this paper looks at the interplay between drug prohibition and human rights in addressing complex issues, such as our right to self-medicate, to practice our religion(s) freely, and to explore our own consciousness. The intention is to expose the untapped potential of the ECHR as a tool with which to fundamentally challenge the (discriminatory) drug policy of the United Kingdom.

International Journal of Human Rights, Vol. 14, No. 3, May 2010, 425–441

UN Special Rapporteur on the Right to Health, Preliminary observations and recommendations on Mission to Australia

In his preliminary observations and recommendations following his 2009 mission to Australia, the UN Special Rapporteur on the Right to Health, Anand Grover, calls for ‘an increased and proactive focus on health promotion activities as well harm reduction interventions, such as needle and syringe exchange programmes, to address the preventive health needs of inmates of all cultural backgrounds.’ (page 3)

Sp Rapp for Health Press statement Australia – FINAL Dec 4

Recalibrating the Regime: The need for the human rights-based approach to international drug policy, D Barrett, R Lines, R Schleifer, R Elliott, D. R. Bewley-Taylor

Published by the Beckley Foundation Drug Policy Programme and the International Harm Reduction Association, March 2008

The report looks at the growing tensions between the United Nations drug control system and international human rights law. It highlights that, despite numerous instances of human rights abuses perpetrated in the name of drug control, and the status of human rights in international law, there has been little engagement with this issue by the responsible drug control and human rights bodies. The report presents a series of avenues for reform at the international level to address this imbalance

Available for download via IHRA

Mission of Paul Hunt, UN Special Rapporteur on the Right to Health, Oral Remarks to the Press in Bogota, Colombia

MISSION OF PAUL HUNT, THE UN SPECIAL RAPPORTEUR ON THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH

ORAL REMARKS TO THE PRESS, FRIDAY 21 SEPTEMBER 2007,

BOGOTA, COLOMBIA

Good afternoon ladies and gentlemen. It is a great privilege for me to be here. I would like to warmly thank the Government of Colombia for inviting me. I would also like to warmly thank OHCHR for organising a rich and challenging schedule of meetings, as well as the UN Information Centre for organising and hosting this press conference.

Earlier today I shared with the Government the essential contents of these oral remarks.

You will find in the room a short document, in Spanish, that explains my UN responsibilities as Special Rapporteur on the right to health. It also provides some additional background information.

In brief, I am an independent expert who reports to, and advises, the UN Human Rights Council and UN General Assembly. I am a citizen of New Zealand.

Please note that I am independent. I am not a member of the UN secretariat. I am not a member of the secretariat of the Pan American Health Organisation. As an independent expert, I exercise my professional judgement, without fear or favour, and report to the United Nations.

Early this year, I was invited by the Government of Ecuador to prepare a report on the impact of aerial spraying of glyphosate along the Ecuadorian side of the Ecuador Colombia border.

By way of preparation, during May I visited New York and discussed the issues with the UN Department of Political Affairs – and I also visited Washington D.C. an discussed the issues with the Organisation of American States, as well as the Pan American Health Organisation (PAHO).

Also in May, I visited Ecuador where I discussed the issues with Ministers, senior public officials, Governors from the northern zone of Ecuador, and the UN Country Team. I visited three communities in the northern zone of Ecuador, as well as many representatives of civil society.

Since I first agreed to undertake a report on this complex issue, I have sought to discuss the issues with the Government of Colombia. And so I was very pleased last month to receive an invitation to visit Colombia. During my visit here, I am meeting with – or have met with – the Vice President, Vice Minister of International Relations,

Vice Minister of Health, Director of the Anti-Narcotics Police, UN agencies, and civil society organisations. Tomorrow I visit San Jose.

I take this opportunity to warmly thank all those, including civil society, who are providing me with their time and advice.

I arrived in Bogota yesterday – I depart on Sunday. I have already received a lot of useful oral and written information which needs careful consideration. My meetings continue. In these circumstances, it would be premature for me to express firm views and make final recommendations. They will be in my report to the UN Human Rights Council.

I would like to emphasise that my UN mandate is to look at the human right to health.

I am focussing on the aerial spraying of glyphosate, combined with additional components, along the Ecuador-Colombia border. (As a short hand, I will use the term glyphosate for this combination of glyphosate and additional components.) Crucially, I am looking at this issue through the prism of the right to health.

I accept that illicit coca cultivation and production raises very grave and complex issues for the Government of Colombia to which there are no easy answers.

This is not a scientific mission. My colleagues and I are not taking samples or doing laboratory tests. We are discussing and reviewing the existing scientific evidence. In Ecuador and Colombia, we have listened to personal testimonies. And we will critically examine all the material through the lens of the human right to health. Then I will reach conclusions and make recommendations. Others have already done scientific studies – and several more are in preparation. I am not here to add to this on-going scientific work.

The right to health includes both access to medical care and the pre-conditions of health, such as water, sanitation and a healthy environment. Both medical care and the pre-conditions of health are essential in this case.

On leaving Ecuador in May, my preliminary view – based on all the information available to me at that time – was that the aerial spraying of glyphosate along the Colombia-Ecuador border should not re-commence. I formed the view that the scientific studies already identified in earlier reports should be undertaken and completed.

My reasons for this position were these.

Colombia has a human rights responsibility of international assistance and cooperation, including in health. Consequently, as a minimum, Colombia must not jeopardise the enjoyment of the right to health in Ecuador.

In Ecuador, I was provided with credible, reliable testimony that the aerial spraying of glyphosate along the Colombia-Ecuador border may damage the physical health of people living in Ecuador. There was also credible, reliable testimony that the aerial spraying may damage their mental health. For example, I was reliably informed that military helicopters sometimes accompany the aerial spraying and the entire experience can be terrifying, especially for children, even when the helicopters remain in Colombian airspace.

I took the view that this testimony was sufficient to trigger the precautionary principle – which led to my preliminary position that spraying should cease until it is clear that it does not damage human health.

I also took the view that it would be unfair to require Ecuador to prove that the spraying damages human health because I was informed that Ecuador does not have access to essential information that is required to make that assessment. I was informed, for example, that Ecuador does not know the precise composition of the herbicide that Colombia is using. Thus, I took the preliminary position that Colombia has the responsibility to show that the spraying damages neither human health nor the environment.

In summary, when considering Colombia’s international human rights responsibilities together with the precautionary principle, I formed the preliminary view that Colombia should not recommence aerial spraying of glyphosate on its border with

Ecuador – and that, to ensure conformity with its international human rights responsibilities, Colombia should respect a ten-kilometre no-spray zone along the border.

I accepted that glyphosate is used in Ecuador, but observed that there are distinctions between the Ecuadorian use of glyphosate and its use on the border by Colombia. For example, the Government of Colombia (or others on its behalf) adds some components to the glyphosate, in contrast to Ecuadorian policy and practice. Thus, in my view any suggested equivalence between Ecuadorian and Colombian practice was misleading.

These are some of the facts and preliminary points of view that I came to Colombia to discuss and explore, before taking my final position and submitting my report to the United Nations.

I am very grateful to all those I have met. Without exception, our discussions have been very open and constructive. A number of important points have emerged which I will take into account as I prepare my report.

For example, the Government takes the position that there is no scientific uncertainty about the impact on human health of glyphosate as used in Colombia.

I also note that the Government of Colombia emphasises that, consistent with the principles of transparency and good faith, it has made publicly available the precise composition of the glyphosate, and additional components, that are used in the aerial spraying.

I have also been interested to learn of the opinion of Vice President Santos, which he has expressed publicly, that manual eradication of coca is more effective than aerial spraying.

And I have gained the welcome impression that the merits of effective alternative development – combined with manual eradication – are being increasingly recognised.

Conclusion

The sharp differences of opinion between the Governments of Ecuador and Colombia underscores the crucial importance of independent, reliable studies that have the
confidence of both parties and all fair-minded observers.

The glyphosate aerial spraying issue has become deeply politicised. When an issue becomes politicised in this way, human rights are always among the first victims. The
health and lives of ordinary people – especially the most disadvantaged and poor – are forgotten or obscured.

It is imperative that when considering this very important issue the human right to health – at root, the well-being of disadvantaged individuals and communities – is
placed at the centre of all decision-making.

*****